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T2803

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing in respect of an industrial dispute

Hospital Employees Federation of Australia
(Tasmania Branch)

(T.2803 of 1990)

and

Derwent Court Nursing Home

 

DEPUTY PRESIDENT A ROBINSON

HOBART 27 February 1991

Alleged unfair dismissal

REASONS FOR DECISION

This matter concerns an application for a hearing to settle an industrial dispute pursuant to the provisions of Section 29 of the Industrial Relations Act 1984.

In its application of 5 November 1990, the Hospital Employees Federation of Australia, Tasmanian Branch (HEF) alleged that the management of Derwent Court Nursing Home had unfairly dismissed nurse aide Mrs Patricia Free.

Mrs Free had been on work place rehabilitation following an absence on workers' compensation when on 23 October 1990 she was given written notice of her termination of service on the basis that her position as a nurse aide had been kept open for her return to work for more than sixteen (16) months already and even though she had been offered alternative work as a kitchen hand she had refused it. The employer's written notification also stated that staff positions cannot remain open indefinitely and that as a consequence Mrs Free's employment at Derwent Court Nursing Home would be terminated effective from 9 November 1990.

Mrs Free felt aggrieved by this action because she was a long term employee and had fully co-operated in undergoing medical treatment and rehabilitation procedures required of her by her employer's insurers, and favourable medical reports supported her belief that she would be fully recovered and fit to finally resume her normal occupation as a nurse aide in the near future.

The alternative position offered to Mrs Free as a kitchen hand would have been acceptable to her if the remuneration was reasonably comparable. However it is a matter of common ground that had she accepted the kitchen position her income would have been less. Whilst the precise differential in salary was never established, the employer said he believed the kitchen position would have paid between $2,000 and $3,000 per annum less than the nurse aide position.

Mrs Free was emphatic that she could not afford the loss in income which would result from accepting the alternative position offered.

The historical facts are that Mrs Free had been continuously employed at the same establishment (with a series of different owners) for approximately eleven years and sustained an injury by accident at work on 3 June 1989 whilst lifting a patient with another employee of Derwent Court Nursing Home. She was taken to a hospital medical centre immediately thereafter where she received treatment to her left shoulder, but was not admitted. The same day Mrs Free was taken home by her daughter to rest in bed. Since the symptoms persisted she attended a Dr Wilkinson who treated her with injection and physiotherapy treatment.

Because the pain persisted she was referred to Mr Peter Field who arranged X-rays and provided further injections.

Subsequently Dr Wilkinson referred her to Mr Peter Clements who performed an operation on her left shoulder in February 1990.

Following this Mrs Free had further physiotherapy and it was arranged that she return to work on light duties under the supervision of her rehabilitation advisors. Gradually her hours of work were increased until they reached her normal (approximately) 20 hours per week. However she was advised that she was not allowed to lift patients at that stage.

On 23 September 1985 Mrs Free had a similar type of accident at work whilst lifting a patient and strained her right shoulder and was off work for some months. An operation in respect of that injury was performed by Mr R Turner. She then returned to her normal duties and reports no further problems with her right shoulder apart from some aching in cold weather.

There was also an injury by accident at work on 23 May 1986 when Mrs Free slipped on a bath and hurt her little finger and was off work for one week.

A number of other lifting accidents were reported as a matter of course, but there appears to be no evidence of them resulting in lost time.

The parties put different emphasis upon the significance of these reports.

Following the receipt of her notice of dismissal Mrs Free initially sought legal advice, but subsequently requested the HEF to intervene on her behalf.

The matter was first brought on for hearing on 30 November 1990 at which time the Tasmanian Confederation of Industries (TCI) acting as agent for Derwent Court Nursing Home sought an adjournment on the basis that the Manager of the Home was not present due to other commitments. It was further argued that to proceed at that time would constitute a denial of natural justice.

Given the circumstances this claim from an experienced advocate who is trained in the law can only be regarded as spurious.

Mr Alexander, the Manager of the Home concerned was sent a copy of the HEF notification of dispute on 7 November 1990. This was followed up by a notification of the time and place of hearing in the form of a letter dated 22 November 1990. Other parties (including TCI) received a facsimile the same day.

By letter dated 22 November 1990, Mrs Joan Alexander, Director of Jadwan Pty Ltd (trading as Derwent Court Nursing Home) sent a letter to the President which referred to the HEF application for reinstatement of Mrs P Free. This letter acknowledged receipt of a notification from the Commission (T No 2803 of 1990).

On 26 November the President replied to Mrs Alexander in which he advised, inter alia, that the hearing was programmed for 30 November 1990.

And finally on 28 November 1990 a facsimile and/or letter, as appropriate, was sent to the parties confirming that the hearing was to proceed on 30 November 1990.

There is no question therefore that the Commission's obligation to ensure that all parties were properly advised of the nature of the dispute and the time and place of hearing was complied with.

The Act is also quite specific in giving to the Commission the right to proceed in the absence of a party who has been properly advised, i.e.:

"21   (1) Subject to this Act, the Commission may regulate its own procedure.

(2) Without prejudice to the generality of subsection (1), the Commission may, in relation to a matter before it:

.......

.......

      (e) proceed to hear and determine the matter or any part of the matter in the absence of any party to it who has been duly summoned to appear or been duly served with notice of those proceedings".

In the result the hearing on 30 November proceeded, but was confined to hearing HEF witness Mrs Sandra Denton and allowing cross examination.

Mrs Denton is a general registered nurse and a nurse educator employed by "INTRA" Vocational Rehabilitation Services Pty Ltd and took over the rehabilitation of Mrs Free in June 1990. She reported to the employer directly, as well as the employer's insurers concerning Mrs Free's progress.

In her sworn testimony Mrs Denton said, inter alia, that:

    - Mrs Free has a great affinity for the aged and treats them with respect and a lot of care.

    - Mrs Free suffered ligament strain and tear to the shoulder. Initially it was thought this injury would settle down with rest and physiotherapy but after about 6 months it was decided to operate.

      The shoulder is a very complex joint and it takes quite a while to heal.

    - In personal conversation and reports supplied to Mr Alexander it had been indicated to him that rehabilitation was progressing well, healing was progressing well, and there were no anticipated residual problems.

    - The rehabilitation program included being back at work for approximately four months on restricted duties.

    - It was estimated back in August 1990 that Mrs Free would be fully capable of resuming normal duties in February 1991. However due to her rate of progress it was thought she may be capable to resume full duties in November. Closer to this time the estimate was revised to assume February 1991 as a more realistic resumption time.

When the hearing resumed on 6 December a series of off record negotiations took place as part of the conciliatory process. A clear basis of understanding was reached between the parties which involved a number of elements designed to settle the dispute.

The package of items involved the following elements, inter alia:

  • The dismissal notice by the employer would be withdrawn.

  • If Mrs Free was declared fit to resume normal duties by 20 February 1991 by Dr Clements and a rehabilitation doctor (to be agreed) then she would resume her old job.

  • If Mrs Free was not declared fully fit by 20 February 1991 her contract of employment would be terminated.

  • In the event she is cleared for work by 20 February 1991 Mrs Free to assist in the supply of further medical reports at intervals of 1 month and 3 months if required.

This package was to be confirmed by exchange of letters between the HEF and the TCI.

Unfortunately the arrangement broke down at this point and the parties finally put the issues to me for arbitration.

The HEF argued the case of unfair dismissal based upon the following:

  • In a medical certificate issued by Dr P Clements on 11 February 1991 it was certified that Mrs Free had suffered from a shoulder injury which was caused at work, and the worker was fit for normal duties on 21 February 1991.

  • In a comprehensive three page report by orthopaedic surgeon P S H Brown given on 28 November 1990 in respect of Mrs Free he expressed the opinion that, inter alia:

"Her symptoms persisted and therefore she saw Mr Peter Clements who operated on her and as a result her condition has appeared to have resolved satisfactorily".

and later

"She has made a very good recovery from this operation and would seem to be fit shortly to resume her normal duties ...".

Mrs Free saw Mr P S H Browne again in February 1991 and she testifies that he too said she is now fully recovered and is fit to resume her normal nurse aid occupation.

  • Sister Denton's view, a rehabilitation consultant, supported that of the two named orthopaedic specialists already quoted.

  • It is a matter of common ground that Mrs Free is a dedicated and caring nurse aide.

  • The offer of a kitchen job would have been willingly accepted but Mrs Free is self supporting and could not afford the extent of salary loss which would have resulted from its acceptance.

  • Whilst Mrs Free had reported a number of other accidents over time it appeared only two were lost time accidents.

      The TCI took the position that the earlier compromise package offer was "without prejudice" and therefore the original date of dismissal on and from 9 November 1990 still stood. Argument from that point relied upon, inter alia:

  • The onus was upon the applicant to prove unfair dismissal.

  • There is ample legal authority to support the case that if the illness or incapacity is of such a nature, or it appears likely for such a period as to frustrate the purpose or object of the employment, the whole contract of employment is frustrated.

  • Mrs Free had been prone to accidents and appeared unsuited to the heavy work of a nurse aide.

  • She had unreasonably refused an offer of more suitable duties.

  • The employer had to be careful in the selection of nursing staff to ensure they, other employees, and patients were not put at risk.

  • Medical opinion relating to Mrs Free's fitness to resume normal duties on 20/2/91 did not sufficiently comprehend the nature of the work concerned.

  • Without prejudice should I not accept these arguments, then in the alternative I should decide that Mrs Free should be required to submit herself to Dr Gibbs for further medical opinion to determine her fitness for the job.

In deciding the question of whether or not Mrs Free has been unfairly treated in all of the circumstances I believe it is necessary to first isolate several fundamental findings of fact which are critical to the outcome. I also need to decide whether or not this is a case where the termination of services was brought about by frustration of contract, and I should address the matter of onus.

Firstly I state that there is ordinarily an onus of proving a case upon any applicant for a dispute hearing pursuant to Section 29 of the Industrial Relations Act 1984. However in cases where it can be shown by a union applicant that an employer dismissed an employee for alleged serious and wilful misconduct, the onus may shift to the employer to substantiate such a case.

In this case it is argued by TCI that, even though no fault attaches to Mrs Free, the contract of service was frustrated by her incapacity to perform the work of a nurse aide.

There can be no argument as to the general concept of a contract sometimes being frustrated if a party cannot fulfil the obligations inherent in the original contract and which are fundamental to it. However each case must be considered on its merit and in this regard I draw attention to the judgement of Wootan J of the New South Wales Supreme Court in Finch V Sayers (1976) 2 NSW LR 540, who found in the case before him that the

prolonged absence of an employee had not of itself, allowed an employer to regard the contract as having been frustrated.

At no time has it been shown that Mrs Free's inability to return to the full range of duties by virtue of her physical incapacity was contrary to an essential element to her contract of service, i.e. that it was necessary that she perform the function of a nurse aide at all of those times stipulated in a contract. Rather the facts are that there is a large staff of 16 or so persons employed by Derwent Court Nursing Home and that others were able to fulfil her function as a nurse aide at those times when she was precluded from doing so. Obviously it would have been an entirely different case if Mrs Free was the only person qualified to perform a specialised task and that her inability to perform that function created a dilemma for the employer.

It is of relevance to observe that Mrs Free was either wholly or partially incapacitated for about 18 months in all, and it was only when she was given reports of imminent recovery that it was decided to bring her services to an end.

In Halsbury's "Laws of England" 3rd ed. vol. 8, p.190:

"A contract for personal service which can be performed only by the promisor himself will be construed as frustrated if he becomes physically incapable of performing the contract without any default on his part.

Again Halsbury at pp. 202-203:

"Where the contract involves a continuing ability to perform the promise a breach is committed as soon as the promisor has put it out of his power to perform it, even if the disability is not necessarily permanent and he may subsequently be in a position to perform his promise."

My underlining gives emphasis to the fact case law contemplates particular elements which need to be evident before the dictum of frustration of a contract can properly be relied upon.

For the reason that those elements were not proven in this case I reject this particular argument.

The offer of alternative duties more suited to Mrs Free's range of physical capabilities would be a reasonable one in circumstances where:

(a) The remuneration was at least the same, and

(b) Her injury was permanent.

Since neither of those factors were present I do not accept that such an offer excuses dismissal having regard for all of the circumstances prevailing.

Despite the reticence of the Manager of the Home, supported by his Director of Nursing, Sister Bensch, two medical specialists who have treated Mrs Free have provided reports which support the fact that her previous injury has healed. One of these specialists, Dr Clements has certified in writing that Mrs Free is now fit for normal duties. And hearsay evidence given on oath by the patient concerned is that Dr Browne agrees too that she is now fit and will confirm that opinion in writing shortly.

In my view that evidence is persuasive.

It is relevant in my view to have regard for and give weight to the fact that the extensive range of treatment accepted by Mrs Free and the reports supplied by specialist doctors who treated her has been at the instance and under the aegis of Derwent Court Nursing Home's insurers who acted as agents in relation to workers' compensation. Therefore it would be untenable if a situation was reached where another dimension was introduced by the employer separately requiring a level of proof of Mrs Free's fitness beyond that required by the insurers and their solicitors who have also been involved. If I was to accept that situation it is possible, although not probable, that Mrs Free could be found no longer eligible for workers' compensation because she has been declared fit for normal duties, but refused work as a nurse aide because she is not fit enough in the opinion of her employer.

I am not prepared to even contemplate such a possible scenario by requiring further medical opinion from other sources.

I have concluded that in all the circumstances that Jadwan Pty Ltd trading as Derwent Court Nursing Home has acted harshly and unfairly in dismissing Mrs Patricia Free on and from 9 November 1990.

It is my decision that Mrs Free be re-instated in her employment and that she be employed under conditions which are not less favourable to her financially than the position she held as a nurse aide prior to her most recent shoulder injury. The contract of service shall be deemed to have been restored at a date coincident with any cessation of workers' compensation payments, and Mrs Free is to be provided with work in accordance with the requirements of this decision at the earliest possible opportunity thereafter.

Mrs Free shall also be entitled to a severance payment equivalent to any lost time earnings which may occur between any cessation of workers' compensation entitlements and her return to full earning capacity.

In the event there is non compliance with this decision I am prepared to make an Order pursuant to Section 31 of the Act upon the demonstrated need to do so.

 

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr D McLane with Mr C Stringer for the Hospital Employees Federation of Australia, Tasmania Branch.
Mr W J Fitzgerald with Mr J Alexander for Derwent Court Nursing Home.

Date and Place of Hearing:
1990
Hobart
November 30
December 6
1991
February 21
February 22